Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to the
award of Arbitrator Nicholas H. Zumas filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.

Based on the Arbitrator's construction of a provision of
the parties' collective bargaining agreement, the award requires the Agency to
give employees who attend specified training at the Federal Law Enforcement
Training Center (FLETC) the choice of residing in off-site housing with full
reimbursement. The provision states that when on-site housing is made
available to employees, employees will have the option, except in unusual
circumstances, of residing in off-site housing at the full reimbursement rate
rather than in the on-site housing provided.

The Agency excepts to the award on the ground that it
interferes with the Agency's right to assign work under section 7106(a)(2)(B)
of the Statute and conflicts with a Government-wide regulation within the
meaning of section 7117(a)(1).

For the reasons stated below, we conclude that the
Agency's exceptions are without merit and must be denied.

II. Background

The parties' agreement provides that when the Agency
makes housing available to an employee who is attending training, "the employee
will have the option, except in unusual circumstances, of remaining in the
Employer-provided [on-site] housing or of securing other [off-site] housing" at
normal reimbursement rates. Award at 5. The agreement specifies that "unusual
circumstances" are present if, among other things, "the utilization of quarters
furnished by the Employer is a necessary and integral part of the particular
mission or training course." Id. The agreement also states that
"[u]nusual circumstances sufficient to justify requiring an employee to use
Employer-provided facilities are not present when an ordinary benefit to the
Government, such as economy or the ready availability of personnel is the
rationale." Id.

The Agency schedules the training involved in this case
at FLETC, which is also part of the Department of the Treasury. FLETC has a
requirement that trainees must reside on-site unless space is unavailable. In
1980, FLETC issued a directive which "reaffirm[ed] the longstanding policy . .
. that living quarters . . . will be provided to students in training" and
stated that "[a]ny exception to this policy must be approved by the Director or
Deputy Director." Exceptions, Attachment 3 at 3.

The "documented rationale" for the FLETC requirement is
"to intensify the law enforcement training experience and facilitate the
movement of trainees" at the Center. Award at 3. The Agency and the Union agree
that as to training for the Agency's regulatory employees who are represented
by the Union, "these factors are not relevant and that the training class can
be satisfactorily completed without residence at FLETC." Id. at
3-4.

Before 1987, the Agency's approach as to the FLETC policy
was to inform trainees of FLETC's housing requirement. If a trainee did not
accept that arrangement, the Agency paid the minimum per diem (that is, it did
not pay for alternative housing). The Arbitrator found that "FLETC did not
raise objection to this approach." Id.

In 1986, an employee grieved the Agency's failure to pay
the full reimbursement rate when he resided off-site while undergoing training
at FLETC. The matter was submitted to arbitration. In January 1987, the
arbitrator awarded the employee the full reimbursement rate. The arbitrator
concluded that the Agency's practice of paying the minimum per diem rate to
employees refusing the on-site housing and FLETC's lack of objection to this
approach constituted "defacto approval of off-site housing, and
a concession of the absence of a necessity for on-site housing."
Id.

Following the issuance of that award, the Agency issued a
new policy statement informing prospective trainees that residence in FLETC
housing is required by FLETC rule and that in order to meet this requirement,
trainees must register at FLETC and accept a room assignment. In addition, on
April 13, 1987, the Chief of the FLETC Planning and Allocation Staff issued a
memorandum to contract registration personnel. The memorandum stated in part:
"When you learn that a student [who is receiving training] intends to reside
off the Center when housing is available on the Center, you are to contact me
immediately unless you have been notified by my office that the student has
been approved for off-Center housing." Exceptions, Attachment 10. The Director
of FLETC also issued a memorandum on April 13, 1987, which stated in part that
"[a]ppropriate Center directives are being revised to clarify the policy . . .
and establish criteria for exceptions or granting of waivers."
Id.

The Union then filed a grievance alleging that the
Agency's change in policy violated the parties' contract and constituted a
refusal to comply with the prior arbitration award. The Agency denied the
grievance and the matter proceeded to arbitration.

III. Arbitrator's Award

The Arbitrator stated that based on the parties'
submissions, the issues to be decided were: (1) whether the use of
Government-provided housing is a necessary and integral part of the training
class at FLETC; (2) whether the Agency is in compliance with the prior
arbitration award. Award at 2-3.

The Arbitrator sustained the grievance. He ruled that
"the primary issue must be resolved in the Union's favor because residence in
FLETC housing is not 'necessary and integral' to the particular training course
at issue." Id. at 8. The Arbitrator rejected the Agency's argument that
the FLETC residency rule provides the "unusual circumstances" which are
required under the agreement to support a denial of the employee option to
reside off-site. He concluded, in agreement with the Union, that the "natural
meaning of the 'necessary and integral' language [of the contractual provision]
is that government lodging is a necessary element of the training itself."
Id. at 9.

The Arbitrator also stated that "with respect to [the
Agency's] regulatory personnel, FLETC's sole concern in applying its on-site
residency rule is to receive housing fees. There has been no suggestion that
participation in training has been or will be denied [by FLETC] to employees
refusing to agree to live on-site." Id. at 10. The Arbitrator noted that
the FLETC on-site residency requirement is related to economy, a matter
specifically excluded under the contractual provision as an unusual
circumstance justifying an exception to the employee option. Based on these
findings, the Arbitrator found it unnecessary to rule on the second issue
concerning whether the Agency was in compliance with the prior arbitration
award.

As his award, the Arbitrator stated:

The grievance is sustained. According to the terms of . .
. the agreement, ATF employees assigned to the interview techniques training at
the FLETC must be afforded the choice of obtaining alternate housing with full
reimbursement under government travel regulations.

Id.

IV. Positions of the Parties

The Agency contends that the award is contrary to law,
rule, and regulation. The Agency asserts that the award interferes with its
right to assign work under section 7106(a)(2)(B) of the Statute because it
restricts management's right to decide where to hold training. According to the
Agency, compliance with the Arbitrator's award would preclude the Agency from
conducting training at FLETC because of the FLETC rule requiring employees to
reside on-site while undergoing training. Exceptions at 9. The Agency disputes
the Arbitrator's statement (at 10 of his award) that "[t]here has been no
suggestion that participation in training has been or will be denied [by FLETC]
to employees refusing to agree to live on-site." According to the Agency, "all
of the evidence indicates that if [the Agency] refuses or is unable to comply
with FLETC's on-site housing requirement, it will not be able to conduct
training at the Center." Exceptions at 14.

Alternatively, the Agency argues that "if the award is
interpreted to allow the agency to continue to conduct training at FLETC, but
to nonetheless allow employees to reside off-site, the award conflicts with
FLETC's rule which requires students to reside on-site." Id. at 10. The
Agency contends that the FLETC rule is a Government-wide rule under section
7117(a)(1) of the Statute and that the award is, therefore, deficient.

The Union argues that the Agency's first assertion,
claiming a violation of the Agency's right to assign work, simply constitutes
disagreement with the Arbitrator's findings of fact. The Union asserts that
"[f]undamental to [the Agency's] claim is the assumption that the award
prevents [the Agency] from using FLETC. However, the award states no such
thing." Opposition at 4. According to the Union, "the arbitrator's conclusion
that FLETC has in the past and will continue to provide training to those who
lodge off-base explicitly allows [the Agency] to select FLETC as the location
for the courses in question." Id. at 4-5.

The Union contends that the Agency's second assertion,
claiming that the FLETC rule is a Government-wide rule and that the award
conflicts with that rule, also provides no basis for review of the award. The
Union notes that in the Agency's reply brief to the Arbitrator, the Agency
stated that it "does not disagree" with the Union's position that the FLETC
rule is not a Government-wide rule or regulation. Id. at 6. The Union
also contends that the Agency's argument is contrary to the Authority's
decision in National Treasury Employees Union and Department of the Treasury
and U.S. Customs Service, 31 FLRA 181 (1988) (Proposals 2 and 3),
petition for review filed sub nom.Department of the Treasury, United
States Customs Service v. FLRA, No. 88-1308 (D.C. Cir. Apr. 21, 1988). In
that case, the Authority determined that the same FLETC directive involved in
this case does not constitute a Government-wide rule or regulation within the
meaning of section 7117(a)(1) of the Statute.

V. Discussion

We conclude that the Agency has not established that the
award is deficient on any of the grounds set forth in section 7122(a) of the
Statute.

As to the Agency's first assertion, we find that the
Arbitrator's award does not violate management's right to assign work under
section 7106(a)(2)(B) of the Statute. The Agency asserts that FLETC will not
permit training for employees who choose to reside off-site and, therefore,
that the award restricts the Agency's right to decide to conduct training
there. However, as the Union notes, this argument is based on a contention of
fact which is contrary to the Arbitrator's findings of fact.

Based on the record before him, the Arbitrator found
nothing to suggest that "participation in training has been or will be denied
[by FLETC] to employees refusing to agree to live on-site." Award at 10. The
FLETC directive and memoranda discussed above (Attachments 3 and 10 to the
Agency's Exceptions) do not state that training will be denied in the
circumstances alleged by the Agency. Additionally, the directive and memoranda
note that exceptions and waivers to the FLETC policy can be granted by
appropriate FLETC officials.

The Agency's contention is based on a disagreement with
the Arbitrator's findings of fact. A party's disagreement with an arbitrator's
findings of fact does not provide a basis under section 7122(a) to overturn an
arbitrator's award. See, for example, Metropolitan
Correctional Center and American Federation of Government Employees, Local
3652, 31 FLRA 1059 (1988) (exceptions which constitute nothing more than
disagreement with the arbitrator's findings of fact provide no basis for
finding the award deficient). Because the Arbitrator made a factual finding
that the Agency is not prevented from conducting training at FLETC for
employees who reside off-site, we have no basis on which to conclude that the
award restricts management's ability to decide where to hold
training.

The Agency's second assertion also provides no basis for
finding the award deficient. As noted by the Union, we concluded in U.S.
Customs Service, 31 FLRA at 196-97, that the same FLETC directive which is
involved in this case does not constitute a Government-wide rule or regulation
within the meaning of section 7117(a)(1) of the Statute. Therefore, based on
the rationale contained in U.S. Customs Service, we find that the
Arbitrator's award does not conflict with a Government-wide rule or regulation
as contended by the Agency.